Rule 10

AMENDED AND SUPPLEMENTAL PLEADINGS

Part I. AMENDMENTS

Sec. 1. Amendments in general. - Pleadings may be

amended by adding or striking out an allegation or
the name of any party, or by correcting a mistake
in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so
that the actual merits of the controversy may
speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner. (1)

Pleadings may be amended by:

1. adding an allegation of a party;
2. adding the name or substituting a party
3. striking out an allegation of a party;
4. striking out the name of a party;
5. correcting a mistake in the name of a party; and
6. correcting a mistake or inadequate allegation or description in any
other respect.

So you can amend by removing something, adding something, or

changing something by substituting another word. You can amend by
removing an entire paragraph, an entire sentence, a phrase, or a word.
As a matter of fact, before reaching Rule 10, there are provisions where
amendments have already been touched upon, one of which is Rule 1,
Section 5:

Sec. 5. Commencement of action.- A civil action

is commenced by the filing of the original
complaint in court. If an additional defendant is
impleaded in a later pleading, the action is
commenced with regard to him on the date of the
filing of such later pleading, irrespective of
whether the motion for its admission, if necessary,
is denied by the court.

Q: What is the policy of the law on amendments?

A: Section 1 says that the purpose of amendment is that the actual

merits of the controversy may speedily be determined without regard
to technicalities, and in the most expeditious and inexpensive manner.
According to the SC, amendments to pleadings are favored and
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should be liberally allowed in order (a) to determine every case as
far as possible on its actual merits without regard to
technicalities, (b) to speed up the trial of cases, and (c) to
prevent unnecessary expenses. (Verzosa vs. Verzosa, L-25603,
Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)

TYPES OF AMENDMENTS:

The following are the important points to remember here:

FIRST, there are two ways of amendment of pleadings under the

rules:
1.) An amendment as a matter of right; or
2.) An amendment as a matter of judicial discretion

SECOND, there are two types:

1.) a formal amendment; or
2.) a substantial amendment

Formal and substantial amendment-

Sec. 4. Formal amendments. - A defect in the

designation of the parties and other clearly clerical
or typographical errors may be summarily corrected by
the court at any stage of the action, at its initiative
or on motion, provided no prejudice is caused thereby
to the adverse party. (4a)

When the amendment is fairly formal, it can be done anytime. As a

matter of fact it can be summarily corrected by the court at any stage
of the action, upon motion or even without motion because anyway
that is a harmless correction.

NOTE: Change of amount of damages is only formal because there is

no change in the cause of action.

Substantial amendment refers to a change in the cause of action

or theory of the case.

These are the same classification under the Rules on Criminal

Procedure under Rule 110.

Classification according to how amendment is made-

Amendment as a MATTER OF RIGHT and Amendment as a
MATTER OF JUDICIAL DISCRETION

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 AMENDMENT AS A MATTER OF RIGHT simply means that the party
has the unconditional action or right to amend his pleading.
The court has no right to prevent him from amending. The opposite
party has no right to oppose the amendment. If the court refuses to
admit the amended pleading such refusal is correctible by
mandamus.

AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means

that the court may or may not allow the amendment. This is also
known as amendment by leave of court. So the other party has the
right to oppose.

AMENDMENT AS A MATTER OF RIGHT

Sec. 2. Amendments as a matter of right. - A

party may amend his pleading ONCE as a matter of
right at any time before a responsive pleading is
served or, in the case of a reply, at any time
within ten (10) days after it is served. (2a)

Before the service of a responsive pleading, a party has the absolute

right to amend his pleading, regardless of whether a new cause of
action or change in the theory is introduced (Bautista vs. Maya-
Maya Cottages, Inc. 476 SCRA 416).

Thus, the plaintif has the right to amend his/her complaint once at
any time before an Answer is served by the defendant or in case
of a reply to which no responsive pleading is provided by the rules,
within 10 days after said Reply is served.

As regards the defendant he can amend his/her answer once as a

matter of right at any time before a reply by the plaintif is filed
or before the expiration of the period to file a reply because a
reply may or may be not be filed.

Rule applicable before the trial court not on appeal-

Section 2 refers to an amendment made before the trial court, not to

amendments before the Court of Appeals. The CA is vested with
jurisdiction to admit or deny amended petitions filed before it (Navarro
vs. Vda. De Taroma, 478 SCRA 336).

Applicability of Mandamus when the court denies amendment

when a matter of right-

The court would be in error if it refuses to admit an amended pleading

when its exercise is a matter of right. This error is correctible by
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mandamus (Breslin vs. Luzon Stevedoring 84 Phil. 618; Ong Peng vs.
Custodio 1 SCRA 780) because the trial courts duty to admit an
amended complaint made as a matter of right is purely ministerial
(Alpine Lending Investors vs. Corpuz 508 SCRA 45).

SUMMARY: Amendment as a matter of right:

1.) Complaint- before an answer is served;
2.) Answer- before a reply is served or before the period for
filing a reply expires;
3.) Reply- Any time within 10 days after it is served; and
4.) Formal amendment- at any time

A motion to dismiss is not a responsive pleading; does not bar

amendment as matter of right-

If a motion to dismiss is filed, an amendment to the complaint would

still be a matter of right during the pendency of the motion to dismiss.
Such a motion is not a responsive pleading and its filing does not
preclude the exercise of the plaintiffs right to amend his complaint
(Paeste vs. Jadrigue 94 Phil. 179; Republic vs. Ilao 4 SCRA 106;
Remington Industrial Sales vs. CA 382 SCRA 499).

In a case, the defendant, instead of filing an answer filed a motion to

dismiss on the ground that the plaintiff is not a juridical person and
thus, cannot be a party to the case. The plaintiff filed a motion to admit
an amended complaint, which was admitted by the trial court. As to
whether or not plaintiff could so amend his complaint as a matter of
right, the Supreme Court reiterated the rule that a party may amend
his pleading once as a matter of right at any time before a responsive
pleading is served. The Court declared that a motion to dismiss is not a
responsive pleading and so the duty of the trial court is to admit the
amended complaint. Such duty is a ministerial one because the
amendment, under the circumstances, is a matter of right. In fact the
plaintiff should not have filed a motion to admit the amended
complaint (Alpine Lending Investors vs. Corpuz 508 SCRA 45).

Amendment to correct a jurisdictional defect before a

responsive pleading is served, a matter of right-

A fair reading of jurisprudence recognizes the right of a pleader to

amend his complaint before a responsive pleading is served even if its
effect is to correct a jurisdictional defect. The argument that the court
cannot allow such type of amendment since the court must first
possess jurisdiction over the subject matter of the complaint before it
can act on any amendment has no application upon an amendment
that is made as a matter of right.

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 In one case involving litigation over a parcel of land, the complaint
filed with the then CFI was a complaint alleging forcible entry. The
defendants filed a motion to dismiss alleging that the court has no
jurisdiction over an action for forcible entry. Without waiting for the
resolution of the motion to dismiss, the plaintiff filed an amended
complaint with new allegations which transformed the original
allegations of forcible entry into an action for quieting of title, an action
which at that time was cognizable by the CFI. The trial court admitted
the amended complaint, ordered the defendants to answer it and
denied the motion to dismiss. The SC sustained the trial court as being
consistent with the purpose and spirit of the Rules (Gumabay vs.
Baralin 77 SCRA 258).

In another case filed before the City Court of Manila to recover

unpaid rentals with a prayer that an order be issued for the surrender
of the premises by the defendant to the plaintiff, the defendant filed a
motion to dismiss on the ground that the amount sought to be
recovered is beyond the jurisdiction of the court and that there are no
allegations in the complaint showing that the defendant was unlawfully
withholding the premises from the plaintiff. Before action could be
taken on the motion to dismiss, the plaintiff amended the complaint, to
include the requisite allegations. The court denied the motion to
dismiss and the opposition to the amended complaint. The court ruled
that since no responsive pleading was served at the time of the
amendment, the plaintiff had done so as a matter of course.
Reiterating the rule that a motion to dismiss is not a responsive
pleading, the SC sustained the trial court (Soledad vs. Mamangun 8
SCRA 110).

Even if the motion to dismiss is already granted, the plaintif

can still amend his/her complaint as a matter of right before
the dismissal becomes final (or before the 15 days from service
have expired) and as long as no answer has yet been served
(Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416, 419)

Following the above rule, an amendment to the complaint sought to be

made one month after notice of the order dismissing the complaint can
no longer be allowed because the order of dismissal has already
become final due to the failure to perfect an appeal. As a rule, the
aggrieved party must perfect his appeal within the period as provided
for by law. The rule is mandatory in character. A partys failure to
comply with the law will result in the decision becoming final and
executory and, as such, can no longer be modified or reversed. Thus, it
is beyond the power or jurisdiction of the court which rendered the
decision or order to amend or revoke the same after the lapse of the
fifteen-day reglementary period to file an appeal(National Mines and
Allied Workers Union GR 157232, December 10, 2007)

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 AMENDMENT AS A MATTER OF JUDICIAL DISCRETION

Sec. 3. Amendments by leave of court. - Except as

provided in the next preceding section, substantial
amendments may be made only upon leave of court. But
such leave may be refused if it appears to the court
that the motion was made with intent to delay. Orders
of the court upon the matters provided in this section
shall be made upon motion filed in court, and after
notice to the adverse party, and an opportunity to be
heard. (3a)

Q: When is an amendment a matter of judicial discretion?

A: 1.If the amendment must be substantial; and
2.the adverse party has already filed and served a copy of
his responsive pleading.

The plaintiff, for example, cannot as a matter of right after Answer is

served, amend his complaint by changing his cause of action or adding
a new one without leave of court (Calo and San Jose vs. Roldan 756 Phil
445; Buenaventura vs. Buenaventura 94 Phil. 193)

Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial court is
accorded sound discretion to grant or deny the admission of any
proposed substantial amendments to a pleading after a responsive
pleading has been filed. Generally, where the trial court has
jurisdiction over the case, proposed amendments are denied if
such would result in delay, or would result in a change of a
cause of action or defense or change the theory of the case, or
are inconsistent with the allegations in the original complaint.
(Vivian Locsin, et al., vs. Sandiganbayan, et al., GR No. 134458, August
9, 2007)

The clear import of Sec. 3 of Rule 10 is that under the 1997 Rules,
an amendment may now be allowed by the court even if it
substantially alters the cause of action or defense. Xxx. This rule
should only be true when, despite a substantial change or alteration in
the cause of action or defense, the amendments sought to be made
shall serve the higher interest of substantial justice, and prevent delay
and equally promote the laudable objective of the Rules which is to
secure a just, speedy, and inexpensive disposition of every action and
proceeding. (PPA vs. William GoThong & Aboitiz [WG&A], Inc. 542
SCRA 406 [2008])

Why discretionary-

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After a responsive pleading is filed, an amendment to the complaint
may be substantial and will correspondingly require a substantial
alteration in the defenses of the adverse party. The
amendment of the complaint is not only unfair to the
defendant but will cause unnecessary delay in the
proceedings. Leave of court is thus, required. On the other hand,
where no responsive pleading has yet been served, no defenses would
be altered. The amendment of the pleading will not then require leave
of court (Siasoco vs. CA 303 SCRA 186).

Even if discretionary amendment allowed

Q: Assuming that the amendment is a matter of judicial discretion,

how should the court resolve it?
A: Based on established jurisprudence, the court should always allow
the amendment because of the liberal policy of the rules.
Amendments of pleadings should be liberally allowed in order
that the real merits of the case can be ventilated in court
without regard to technicalities. So the court will always lean on
allowing a pleading to be amended. That is the liberal policy.

LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO

PLEADINGS

Q: What are the limitations to this liberal policy in allowing

amendments? Meaning, when can the court refuse to allow the
amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section
3);
2.) when the amendment is for the purpose of making
the complaint confer jurisdiction upon the court
(Rosario vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a
premature or non-existing cause of action (Limpangco
vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
4.) When the cause of action, defense or theory of the
case is changed.

1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION

The second sentence of Section 3 says that such leave may be

refused if it appears that the motion was made with intent to delay.
Meaning, the motion to amend is dilatory. Example: a case is filed
against the defendant based on a cause of action then trialtrialthen
the case is already about to end. Then the plaintiff says he wants to
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amend his complaint and change his cause of action. I dont think the
court will allow it. Thats too much.

Or, the defendant will say that he would like to change his defense.
I dont think the court will agree with that situation because it appears
that the motion to amend is already dilatory. Why did it take you one
year to realize that your cause of action or your defense is wrong? So
that is a limitation where the court may refuse to apply the principles
on liberality. The liberal policy becomes weaker or is working against
you the longer you delay your amendment because it might already be
interpreted to be dilatory.

MARINI-GONZALES vs. LOOD

148 SCRA 452

HELD: While the Rules of Court authorize the courts to

disallow amendment of pleadings when it appears that the
same is made to delay an action or that the cause of action or
defense is substantially altered thereby, the rule is not
absolute. It is discretionary.
Courts are not precluded from allowing amendments
of pleadings even if the same will substantially change
the cause of action or defense provided that such
amendments do not result in a substantial injury to the
adverse party. This is due to the permissive character of said
rule [which provides: may refuse]. In fact, this Court has
ruled that amendments to pleadings are favored and should be
liberally allowed in the furtherance of justice.

2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE

COMPLAINT CONFER JURISDICTION UPON THE COURT

Amendment to correct a jurisdiction defect after a responsive

pleading is served

An amendment of the complaint to correct a jurisdictional error

cannot be validly done after a responsive pleading is served. The
amendment this time would require leave of court, a matter,
which requires the exercise of sound discretion. The exercise
of this discretion requires the performance of a positive act by
the court. If it grants the amendment, it would be acting on a
complaint over which it has no jurisdiction. Its action would be
one performed without jurisdiction.

The situation is vastly different from an amendment as a matter of

right. Here the court does not act. The admission of the amendment is
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a ministerial duty of the court. It requires no positive action from the
court. Since it would not be acting in this regard, it could not be
deemed as acting without jurisdiction.

In one case, a former employee filed an action for recovery of

compensation for unpaid holiday and overtime services with the then
Court of Industrial Relations against his former employer. The
defendant filed a motion to dismiss but was denied. The defendant-
employer then filed an answer invoking as one of its affirmative
defenses lack of jurisdiction of the court over the subject matter since
the complaint did not allege the existence of an employer-employee
relationship between the parties. The complaint alleged neither illegal
dismissal nor seeks for the reinstatement of the plaintiff. Realizing a
jurisdictional error, the plaintiff filed leave to amend his complaint and
to admit an amended pleading alleging illegal dismissal and a claim for
reinstatement. Speaking on the issue of the propriety of the admission
of the amendment, the SC ruled that a complaint cannot be amended
to confer jurisdiction on the court in which it was filed, if the cause of
action originally set forth was not within the courts jurisdiction
(Campos Rueda Corp. vs. Bautista 6 SCRA 240; Rosario vs. Carandang
96 Phil. 845). Note that in Campos Rueda, an answer has already
been served and filed.

Similarly, in an action for damages filed before the then CFI against
a sheriff for an alleged illegal levy upon the property of the plaintiff,
the latter sought to amend his complaint after an answer has been
served by the defendant. The amendment was made when the plaintiff
realized that the amount alleged as damages was below the
jurisdiction of the court. The SC held that it was error to admit the
amendment because the court must first acquire jurisdiction over the
subject matter of the complaint in order to act validly on the same
including its amendment (Gaspar v. Dorado 15 SCRA 331).

The rule here is when on its face, the complaint shows that the court
has no jurisdiction over the subject matter, the court has no authority
to act in the case. And if you move to amend it and ask the court to
allow the amendment, you are assuming that the court has the
authority to act on the case. But the court cant allow it because the
court has no authority to act. So the court even is not authorized to
allow the amendment because it has no authority to act in the first
place. How can you allow something when you do not have the
authority to act?

So according to the SC, when on its very face the complaint shows
that the court has no jurisdiction, the court has only one authority and
its only authority is to dismiss the case. So with that an amendment
cannot confer jurisdiction.

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 3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A
PREMATURE OR NON-EXISTING CAUSE OF ACTION

Meaning, on its very face, there is no cause of action, there is

no case. There is no delict or there is no wrong. Now how can
you create a delict or wrong by amending your complaint? In effect,
you are creating something out of nothing.

No amendment where no cause of action exists at the time of

filing-

May a complaint that lacks a cause of action at the time it was filed
be cured by the accrual of a cause of action during the pendency of the
case?

This was the basic issue raised in one significant case (Swagman
Hotels and Travel Inc vs. CA, 455 SCRA 175). When the case was filed
none of the promissory notes subject of the action was due and
demandable but two of the notes became due during the pendency of
the action.
Sec. 5 of Rule 10 allows a complaint that does not state a cause of
action to be cured by evidence presented without objection during
the trial. The trial court ruled that even if the private respondent had
no cause of action when he filed the complaint for a sum of money and
damages because none of the three promissory notes was due yet, he
could nevertheless recover on the first two promissory notes which
became due during the pendency of the case in view of the
introduction of evidence of their maturity during the trial.
The court rules that such interpretation is erroneous. It further
said:

Amendments of pleadings are allowed under Rule 10 of the 1997

Rules of Civil Procedure in order that the actual merits of a case may
be determined in the most expeditious and inexpensive manner
without regard to technicalities, and that all other matters included in
the case may be determined in a single proceeding, thereby avoiding
multiplicity of suits. Section 5 thereof applies to situations wherein
evidence not within the issues raised in the pleadings is presented by
the parties during the trial, and to conform to such evidence the
pleadings are subsequently amended on motion of a party. Thus, a
complaint which fails to state a cause of action may be cured by
evidence presented during the trial.
However, the curing efect under Section 5 is applicable
only if a cause of action in fact exists at the time the complaint
is filed, but the complaint is defective for failure to allege the
essential facts. For example, if a complaint failed to allege the
fulfillment of a condition precedent upon which the cause of action
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depends, evidence showing that such condition had already been
fulfilled when the complaint was filed may be presented during the
trial, and the complaint may accordingly be amended thereafter. Thus,
in Roces vs. Jalandoni, this Court upheld the trial court in taking
cognizance of an otherwise defective complaint which was later cured
by the testimony of the plaintiff during the trial. In that case, there was
in fact a cause of action and the only problem was the insufficiency of
the allegations in the complaint. It thus follows that a complaint
whose cause of action has not yet accrued cannot be cured or
remedied by an amended or supplemental pleading alleging
the existence or accrual of a cause of action while the case is
pending. Such an action is prematurely brought and is,
therefore, a groundless suit, which should be dismissed by the
court upon proper motion seasonably filed by the defendant.
The underlying reason for this rule is that a person should not
be summoned before the public tribunals to answer for
complaints which are immature.

BAR QUESTION: How do you distinguish a NON-EXISTENT cause of

action from IMPERFECT cause of action?
A: The following are the distinctions:

1.) In a NON-EXISTENT cause of action, there is yet no delict or

wrong committed by the defendant (Limpangco vs. Mercado,
10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already
been committed and alleged in the complaint, but the
statement cause of action is incomplete (Alto Surety vs.
Aguilar, L-5625, March 16, 1945); and

2.) a NON-EXISTENT cause of action is not curable by

amendment (Limpangco vs. Mercado, 10 Phil. 508; Surigao
Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto
Surety vs. Aguilar, L-5625, March 16, 1945; Ramos vs.
Gibbon, 67 Phil. 371).

Prescription and an amended complaint

Rules:
a.) If the amendment introduces a new and diferent
cause of action, then the prescriptive period is deemed
interrupted upon the filing of the amended complaint;
(Ruymann vs. Dir. of Lands, 34 Phil. 428)

b.) But where the amendment has not altered or changed

the original cause of action, no diferent cause of action
is introduced in the amended complaint, then the
interruption of the prescriptive period retroacts on the
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 date of the filing of the original complaint. (Pangasinan
Trans. CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago
vs. Mallari, 52 O.G. 180, October 31, 1956)

EXAMPLE: I will file today a case for damages arising from quasi-
delict. And then one or two months from now I will amend my
complaint from damages arising from culpa aquiliana to damages
arising from culpa contractual. Is that a different cause of action? Yes,
so the prescriptive period for culpa contractual is deemed filed next
month, not this month, because that is a different cause of action.

EXAMPLE: But suppose I file a case against you for culpa aquiliana,
and my claim is one million. Next month I amend my complaint for
damages from one million pesos to two million pesos. Did I change my
cause of action? No, it is still the same cause of actionculpa
aquiliana. Therefore, the prescriptive period is deemed interrupted as
of the date of the filing of the original complaint.

AMENDMENTS TO PLEADINGS IN CRIMINAL CASES

Under the rules on criminal procedure, at anytime before the

arraignment or before he enters plea, the amendment of information is
a matter of right, either in form or in substance.

EXAMPLE: The prosecution files an information against you for

homicide and then the prosecution wants to agree to murder. Can it be
done? YES, for as long as the accused has not yet entered his plea.

So it is almost the same as in civil cases. For as long as there is no

responsive, pleading the amendment is a matter of right whether in
substance or in form.

Q: Now in criminal cases, AFTER the accused had already entered

his plea to the original charged, is amendment still allowed? Can the
prosecution still amend?
A: YES. But what is allowed is only formal amendment and with
leave of court. Substantial amendment is 100% prohibited in criminal
cases. But in civil cases, formal amendment is still a matter of right
hence, does not require leave of court, while substantial amendment is
discretionary.

OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED;

EXCEPTION
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 Sec. 5. Amendment to conform to or authorize
presentation of evidence. - When issues not raised
by the pleadings are tried with the express or
implied consent of the parties, they shall be
treated in all respects as if they had been raised
in the pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon
motion of any party at any time, even after
judgment; but failure to amend does not affect the
result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is
not within the issues made by the pleadings, the
court may allow the pleadings to be amended and
shall do so with liberality if the presentation of
the merits of the action and the ends of
substantial justice will be subserved thereby. The
court may grant a continuance to enable the
amendment to be made. (5a)

Section 5 Rule 10 covers two situtations-

1. when evidence is introduced on an issue not alleged in the
pleadings because the parties have expressly agreed on it or no
objection was interposed by the other party (implied agreement);
and
2. when evidence is offered on an issue not raised in the pleadings
but an objection was interjected by the other party.

Procedure when issues not raised in the pleadings are tried

with the express or implied consent of the parties-
1. they shall be treated as if raised in the pleadings;
2. pleadings may be amended to conform to the evidence; and
3. failure to amend does not affect the result of the trial of these
issues.

As a GENERAL RULE, a party during the trial is not allowed to prove a

claim or defense that is not raised in the pleadings based on Rule 9,
Section 1 because the court has no jurisdiction over the issue. Thats
why there is no such thing as surprise claim or defense. Every party is
required to lay his/her card on the table.

The first part of Sec. 5 Rule 10 applies to situations wherein evidence

not within the issues raised in the pleadings, is offered by the parties
during the trial and not objected to. In such a case, said issues not
found in the pleadings are deemed to have been tried with the consent
JBD 174
of the parties. That being so, the rule treats the issues as having been
raised in the pleadings even if not actually raised.

It also covers situations where a complaint insufficiently states a cause

of action. Such insufficiency may be cured by evidence presented
during the trial without objection.

Likewise if a complaint failed to aver the fact that certain conditions

precedent were undertaken and complied with and evidence is
presented to prove the same without objection.

As plaintif-

For example: A complaint filed by a guarantor to collect a sum of

money from the debtor fails to state a cause of action if the complaint
does not allege that the creditor of the debtor has been paid by the
guarantor even if in fact there was payment. However, if during the
course of the proceedings, evidence is offered on the fact of payment
without objection from the debtor, the defect in the complaint was
cured by the evidence. The plaintiff may then move for the
amendment of his complaint to conform to the evidence. (Philippine
Export and Foreign Loan Guarantee Corporation vs. Philippine
Infrastructures Inc. 419 SCRA 6).

As to defendant-

EXAMPLE: In a collection case, the defendant in his answer raised a

defense that the money obtained from the defendants was not a loan
but a donation. During the trial, he attempted to prove that it was a
loan but it was already fully paid. So he is now proving the defense of
payment. He is practically changing his defense. If you follow Rule 9,
Section 1, that is not allowed.
But suppose the parties during the trial had agreed that the
defendant will prove that the obligation is paid, or even if there was no
such agreement, the plaintiff failed to object, then it can be done
because issues now raised in the pleadings are tried with the express
or implied consent of the parties. They shall be treated in all respects
as if they had been raised in the pleadings.

In the case of implied consent, the best example, then, is when the
defendant attempts to prove payment and the plaintiff FAILED TO
OBJECT. So there is now an implied consent by the parties. Therefore,
the case can now be tried on the issue as if they had been raised in the
pleadings. That is what we call the principle of estoppel. The
parties are in estoppel because they expressly or impliedly agreed to
try an issue which is not raised in the pleadings. The court will now

JBD 175
render judgment and discuss the evidence and discuss whether the
obligation has been paid or not.

Remedy of amendment to conform to the evidence-

The remedy according to Section 5 is to amend the pleadings is to
make them conform to the evidence. That is why the law says: such
amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment.

So even after the judgment, you can amend the pleading in order to
harmonize with the evidence.

Procedure of amendment if evidence is opposed; amend first

the pleading then present the evidence-

if the evidence is objected to at the trial on the ground that it was

not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial
justice will be subserved thereby.

Continuance to enable amendment

The last sentence, the court may grant a continuance to enable the
amendment to be made. Continuance means postponement. It
means, postponement of the case to allow the defendant to amend his
answer first.

The curing efect under Sec. 5 R 10 is applicable only if a cause

of action in fact exists at the time the complaint is filed. Unless
the plaintiff has a valid and subsisting cause of action at the time his
action is commenced, the defect cannot be cured or remedied by the
acquisition or accrual of one while the action is pending, and a
supplemental complaint or an amendment setting up such after
accrued cause of action is not permissible. The action in the case at
bar is prematurely brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper motion seasonably filed
by the defendant. The underlying reason for this rule is that a person
should not be summoned before the public tribunals to answer for
complaints, which are premature. (Swagman Hotels and Travel, Inc. vs.
CA and Neal Christian, GR No. 161135, April 8, 2005)

Part II. SUPPLEMENTAL PLEADINGS

JBD 176
 Sec. 6. Supplemental pleadings. - Upon motion of
a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions,
occurences or events which have happened since the
date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10)
days from notice of the order admitting the
supplemental pleading. (6a)

Supplemental pleading defined

A supplemental pleading is one, which avers facts occurring after the
filing of the original pleadings and which are material to the
matured claims and/or defenses therein alleged. (Herrera vol. 1
p. 603)

Needs prior leave of court-

The rule states, upon motion of a party the court may xxx. Thus, the
court has discretion to allow it or not. It may allow it upon such terms
as are just.

Cause of action in supplemental pleadings

The cause of action stated in the supplemental complaint must
be the same as that stated in the original complaint. Otherwise,
the court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)

As its very name denotes, a supplemental pleading only serves

to bolster or add something to the primary pleading. A
supplemental pleading exists side by side with the original. It
does not replace that which it supplements. Moreover, a
supplemental pleading assumes that the original pleading is to
stand and that the issues joined with the original pleading
remained an issue to be tried in the action. It is but a
continuation of the complaint. Its usual office is to set up new facts,
which justify, enlarge or change the kind of relief with respect to the
same subject matter as the controversy referred to in the original
complaint.

When the cause of action stated in the supplemental complaint is

different from the causes of action mentioned in the original complaint
the court should not admit the supplemental complaint; the parties
may file supplemental pleadings only to supply deficiencies in aid of an
original pleading, but not to introduce new and independent causes of
action (Young vs. Spouses Sy, 503 SCRA 151).

Answer to a supplemental pleading; not mandatory

JBD 177
Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are
relevant, thus:

Sec. 6. Supplemental pleadings. xxxxx The adverse party may plead

thereto within ten (10) days from notice of the order admitting the
supplemental pleading.
Sec. 7. Answer to supplemental complaint. xxxx The answer to the
complaint shall serve as the answer to the supplemental complaint if
no new or supplemental answer is filed.

As can be gleaned from the above provisions, the filing of an answer

to the supplemental pleading is not mandatory because of the use of
the word may. This is bolstered by the express provision of the Rules
that the answer to the original pleading shall serve as the answer to
the supplemental pleading if no new or supplemental answer is filed.
Thus, the court cannot declare the respondent in default simply
because the latter opted not to file their answer to the supplemental
petition (Chan vs. Chan GR 150746, October 15, 2008).

Distinctions between an AMENDED pleading and a

SUPPLEMENTAL pleading:

FIRST DISTINCTION: As to the allegations

An AMENDED pleading contains transactions, occurrences or events
which already happened at the time the original pleading was
filed and could have been raised at the original pleading, but which
the pleader failed to raise in the original pleading because, oversight or
inadvertence or inexcusable negligence. If he wants to raise it, he must
amend the pleading. Whereas, A SUPPLEMENTAL pleading contains
transactions, occurrences or events which were not in existence at
the time the original pleading was filed but which only happened after
the filing of the original pleading and therefore, could not have been
raised in the original pleading.

This distinction is emphasized in the New Rule Rule 11, Sections

9 and 10:

Rule 11, Section 9. Counterclaim or

cross-claim arising after answer. A
counterclaim or cross-claim which either matured
or was acquired by a party after serving his
pleading may, with the permission of the court,
be presented as a counterclaim or cross-claim by
supplemental pleading before Judgment.

Rule 11, Section 10. Omitted counterclaim or

cross-claim. When a pleader fails to set up a

JBD 178
 counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set
up the counterclaim or cross-claim by amendment
before judgment.

SECOND DISTINCTION: As to effect

In an AMENDED pleading, the amended pleading supersedes the
original pleading. The original pleading is deemed erased. The
amended substitutes the original. So from the viewpoint of the law, the
original pleading no longer exists. Whereas, When a SUPPLEMENTAL
pleading is filed, it does not supersede the original pleading. In
effect, there are now two (2) pleadings which stand side by side in the
case the original and the supplemental pleadings.

EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly

installments. Mortz failed to pay the first installment. Nanding filed a
case. While the case is pending, the other installment became due.
Nanding will now file a supplemental pleading and as a result, there
will be two (2) complaints for P100,000 each.

Section 8. Effect of amended pleadings. An amended

pleading supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received in
evidence against the pleader; and claims and defenses
alleged therein not incorporated in the amended pleading
shall be deemed waived.

This is related to the rule in EVIDENCE on what need not be proved:

judicial notice, and judicial admissions.

Under the rule on evidence, any admission made in a pleading binds

the pleader under the doctrine of judicial admission.
In an amended pleading, all your admissions and evidence in the
original pleading no longer exist because an amended pleading
supersedes the pleading it amends The rule is thus, if a pleading is
amended and the amended pleading does not contain the admissions
contained in the original pleading, the judicial admission is now
converted into an extra-judicial admission and therefore the court will
no longer take judicial notice of that.

So if a party wants to bring to the attention of the court an admission,

which is not found there (in the amended pleading), he/she has to
formally offer in evidence the original pleading. Normally, you do not
offer in evidence a pleading because the court takes judicial notice of

JBD 179
everything stated in there. But if the original pleading is now
superseded, the original must be offered in evidence to prove an
admission found in the original but not anymore in the amended one.
That principle in now found in Section 8:

THIRD DISTINCTION: The filing of an AMENDED pleading could be a

matter of right or of judicial discretion under Sections 2 and 3; whereas
the filing of a SUPPLEMENTAL pleading is always a matter of judicial
discretion under Section 6. There is always leave of court.

Now, let us cite cases, which are relevant to our topic on

supplemental pleadings.

LEOBRERA vs. COURT OF APPEALS

170 SCRA 711

FACTS: Karen went to the bank and obtained a loan

housing loan. A promissory note was issued payable next year.
After a few months, Karen went back to the bank and secured a
second loan agricultural loan with another promissory note.
When the first note became due, Karen failed to pay. So the
bank sued Karen on the first promissory note. When the case
was still going on, the second loan became due. So the bank
sought to file a supplemental complaint against Karen to collect
the second loan. The maturity of the second loan happened
after the filing of the first pleading sought to be supplemented.

ISSUE: Is there a proper supplemental complaint?

HELD: NO. It is improper. Although the plaintiff and the

defendant are the same, there are two separate loans
independent of each other as a matter of fact the stipulations
are not identical. It cannot be the subject matter of a
supplemental complaint. In this case, there are many types of
loans secured in different terms and conditions.
A supplemental complaint must be based on matters
arising subsequent to the original complaint RELATED to the
claim presented therein and FOUNDED on the same cause of
action. It cannot be used to try of another matter or a new
cause of action.

A good EXAMPLE for a supplemental complaint is when I borrow

money from you for P600,000 payable in three installments. First
installment is on February for P200,000; second installment is on April;
and the last installment is on June for the last P200,000. There is no
acceleration clause. When the first installment fell due, I did not pay.
So the plaintiff filed a case against me to collect the first installment.
In April, the case is still not yet decided. In fact the second installment
JBD 180
again fell due. Plaintiff moved to file for the supplemental pleading.
While the two cases are still pending, the last installment fell due and
again there is failure to pay, so there is another supplemental
complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and
the installments are interrelated.

SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS

258 SCRA 165 [1996]

FACTS: Superclean Service Corp. is a company engaged in

janitorial services. A government corporation, the Home
Development and Mutual Fund (HDMF) sought a public bidding
on who will be the company who shall provide janitorial
services to the offices of the HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was supposed
to start providing the service for the year 1990. However, the
HDMF refused to honor the award. So, on November 8, 1989,
Superclean filed in the RTC of Manila a complaint for
mandamus and certiorari against HDMF alleging that at public
bidding for janitorial services for the year 1990, it won as the
lowest bidder but HDMF refused without just cause, to award
the contract to them,
The problem was that 1990 already ended and the case was
still on-going. So it was already rendered moot and academic.
What Superclean did was to file a supplemental complaint in
1991 alleging that because the contract of service was the
furnishing of janitorial services for the year 1990, the delay in
the decision of the case has rendered the case moot and
academic without Superclean obtaining complete relief to
redress the wrong committed against it by HDMF which relied
now consists of unrealized profits, exemplary damages and
attorneys fees.

ISSUE: Is the filing of supplemental complaint proper in order

to seek a different relief in view of developments rendering the
original complaint impossible of attainment?

HELD: The transaction, occurrence or event happening

since the filing of the pleading, which is sought to be
supplemented, must be pleaded in aid of a party's right of
defense as the case may be. [Thats the purpose of the
supplemental pleading in aid of the partys cause of action or
defense] But in the case at bar, the supervening event is not
invoked for that purpose but to justify the new relief sought.
To begin with, what was alleged as a supervening event
causing damage to Superclean was the fact that the year for
JBD 181
 which the contract should have been made had passed without
the resolution of the case. The supervening event was cited not
to reinforce or aid the original demand, which was for the
execution of a contract in petitioner's favor, but to say that,
precisely because of it, petitioner's demand could no longer be
enforced, thus justifying petitioner in changing the relief sought
to one for recovery of damages. This being the case,
petitioner's remedy was not to supplement, but rather to
amend its complaint. You are actually changing the relief so
that the correct remedy is not a supplemental complaint but an
amended complaint.
Be that as it may, the so-called Supplemental Complaint
filed by petitioner should simply be treated as embodying
amendments to the original complaint or petitioner may be
required to file an amended complaint. So, meaning, you call
it a supplemental complaint, the court will call it as an
amended complaint or the other alternative, require him to file
an amended complaint.

Sec. 7. Filing of amended pleadings. - When any

pleading is amended, a new copy of the entire pleading,
incorporating the amendments, which shall be indicated
by appropriate marks, shall be filed. (7a)

When a party files an amended pleading, the amendments should

be indicated by appropriated marks, normally, the amended portion is
underlined.

EXAMPLE: A party would to insert an entirely new paragraph. That

paragraph would be underlined. The purpose for such marking is for
the court and the opposing party to immediately see and detect the
amendment. If no appropriated mark is provided the court and the
lawyer has to compare everything, paragraph by paragraph, sentence
by sentence, line by line. Now, if there are underlines, the court will
just concentrate on the underlined portion. This is for convenience for
the parties and the court.

An amendment, which merely supplements and amplifies facts

originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the Statute of
Limitations which expired after service of the original complaint.
(Verzosa vs. CA, GR No. 119511-13, Nov. 24, 1998)

Section 8. Effect of amended pleadings. - An amended

pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be

JBD 182
received in evidence against the pleader; and claims
and defenses alleged therein not incorporated in the
amended pleading shall be deemed waived.

(Section 8: See discussion on Section 6 on distinctions between an

amended and supplemental pleading; second distinction)

Effect of Amended Pleading

1. An amended pleading supersedes the pleading that it amends;
2. Admissions in the superseded pleading can still be received in
evidence against the pleader;
3. Claims or defenses alleged therein but not incorporated or
reiterated in the amended pleading are deemed waived.

It has been held that the original complaint is deemed superseded

and abandoned by the amendatory complaint only if the latter
introduces a new or different cause of action (Verzosa vs. CA 299 SCRA
100).

The first sentence is one of the distinctions between an amended

pleading and a supplement pleading. From procedural viewpoint, the
original pleading is already non-existent. The court will no longer
consider anything stated there.

EXAMPLE: You say something favorable to me. However, in his

amended pleading, he removes such statement, so that the court will
not consider it anymore. Such statement is out of the picture. Now, if
you want to bring to the attention of the court the statement found in
the original pleading, you must offer the original pleading in evidence
to consider it all over again. This rule will be considered in the study of
EVIDENCE.

Efect of amendment on admissions made in the original

pleading-
Admissions made in the original pleadings cease to be judicial
admissions (Ching vs. CA 331 SCRA 16). They are to be considered as
extrajudicial admissions (Bastida vs. Menzi & Co., Inc., 58 Phil. 188;
Torres vs. CA 131 SCRA 224). However, admissions in superseded
pleadings may be received in evidence against the pleader (Sec. 8
Rule 10) and in order to be utilized as extrajudicial admissions, they
must, in order to have such effect, be formally offered in evidence
(Ching vs. CA, 331 SCRA 16).

When summons not required after complaint is amended-

Although the original pleading is deemed superseded by the pleading
that amends it, it does not ipso facto follow that the service of new
summons is required. Where the defendants have already appeared
before the trial court by virtue of a summons in the original complaint,
JBD 183
the amended complaint may be served upon them without need of
another summons, even if new causes of action are alleged. A courts
jurisdiction continues until the case is finally terminated once it is
acquired. Conversely, when the defendants have not yet appeared in
court, new summons on the amended complaint must be served on
them. It is not the change of the cause of action that gives rise
to the need to serve another summons for the amended
complaint but rather the acquisition of jurisdiction over the
persons of the defendants. If the trial court has not yet
acquired jurisdiction over them, a new summons for the
amended complaint is required (Vlason Enterprises vs. CA 310
SCRA 26).

However, where a new defendant is impleaded, summons must

be served upon him so that the court may acquire jurisdiction over his
person because logically, the new defendant cannot be deemed to
have already appeared by virtue of summons under the original
complaint inn which he was not yet a [arty (Arcenas vs. CA 299 SCRA
733).

Reviewer
Amendment Amended and Supplemental Pleadings (Rule10)
Amendments in general (See below)
a. Amendment as a matter of right
Rule 10, Sec. 2. Amendments as a matter of right.
A party may amend his pleading once as a matter of right at any time BEFORE a
responsive pleading is served or, in the case of a reply, at any time within ten (l0) days
after it is served.

NOTES:
1. The filing by the defendant of a motion to dismiss does not affect the plaintiffs
right to amend his complaint without first securing leave of court because a motion to
dismiss is NOT a responsive pleading.
2. Leave of court is necessary AFTER the filing of a responsive pleading. However, even
substantial amendments may be made under this Rule.
3. But such leave may be refused, if it appears to the court that the motion was made with
intent to delay.

b. Amendments by leave of court

Rule 10, Sec. 3. Amendments by leave of court.
Except as provided in the next preceding section, substantial amendments may be made
only upon leave of court. But such leave may be refused if it appears to the court that the
motion was made with intent to delay. Orders of the court upon the matters provided in
this section shall be made upon (a) motion filed in court, and after (b) notice to the
adverse party, and an (c) opportunity to be heard.

c. Formal amendment
Rule 10, Sec. 4. Formal amendments .
JBD 184
A defect in the designation of the parties and other clearly clerical or typographical errors
may be summarily corrected by the court at any stage of the action, at its initiative or on
motion, provided no prejudice is caused thereby to the adverse party.

d. Amendments to conform to or authorize presentation of evidence

Rule 10, Sec. 5. Amendment to conform to or authorize presentation of evidence.
When issues not raised by the pleadings are tried with the express or implied consent of
the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at ANY TIME,
even after judgment; but failure to amend does not affect the result of the trial of these
issues. If evidence is OBJECTED to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the (a) presentation of the MERITS of the action and the (b) ends
of SUBSTANTIAL JUSTICE will be subserved thereby. The court may grant a
continuance to enable the amendment to be made.

Amendments to Conform to or Authorize Presentation of Evidence

When issues not raised by the pleadings are tried with the express or implied consent
of
the parties
1. They shall be treated in all respects as if they had been raised in the pleadings;
2. Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence may be made upon motion of any party at any time, even after judgment;
3. BUT failure to amend does NOT affect the result of the trial of these issues.

If evidence is objected to at the trial on the ground that it is not within the issues made
by the pleadings
1. The court may allow the pleadings to be amended;
2. It shall do so with liberality if the presentation of the merits of the action and the ends
of substantial justice will be subserved thereby;
3. The court may grant a continuance to enable the amendment to be made.

e. Different from supplemental pleadings

Rule 10, Section 1. Amendments in general.
Pleadings may be amended by (a) adding or striking out an allegation or the name of any
party, or by (b) correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of the controversy
may speedily be determined, without regard to technicalities, and in the most expeditious
and inexpensive manner.

Rule 10, Sec. 6. Supplemental pleadings.

Upon motion of a party the court may, upon reasonable notice and upon such terms as are
just, permit him to serve a supplemental pleading setting forth transactions, occurrences
or events which have happened since the date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10) days from notice of the order
admitting
the supplemental pleading.
JBD 185
NOTES:
1. The adverse party may plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental answer is filed.
2. A supplemental pleading incorporates matters arising AFTER the filing of the
complaint.
A supplemental pleading is always filed with leave of court. It does not result in the
withdrawal of the original complaint.

f. Effect of amended pleading

Rule 10, Sec. 8. Effect of amended pleadings .
An amended pleading SUPERSEDES the pleading that it amends. However, admissions
in superseded pleadings may be received in evidence against the pleader; and claims or
defenses alleged therein not incorporated in the amended pleading shall be deemed
waived.

What happens to the admissions in the original pleading?

They cease to be judicial admissions. Thus, they are to be considered as extrajudicial
admissions and may be proved by the party relying thereon by formal offer in evidence of
such original pleading. (Ching vs. CA, G.R. No. 110844, April 27, 2000)

JBD 186